Ambiguity and hate crime legislation

Key Sun, Ph.D., a psychologist and associate law professor at Central Washington University, has his own interesting take on what's wrong with the Matthew Shepherd Hate Crimes Prevention Act. While he welcomes the bill's intentions, he fears that language of the bill makes prosecution under the act all but impossible.

He points out that the criminal law definition of a crime must (in most instances) define the mens rea, or criminal intent, of the actor. In Texas we categorize crimes by whether the accused acted intentionally, knowingly, recklessly or negligently. A crime in which the accused intended to cause the result is much more serious than a crime in which the accused acted with criminal negligence.

The Shepherd Act defines a hate crime as one in which "the defendant intentionally selects a victim... because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability or sexual orientation of any person."

The problem, according to Dr. Sun, is that this definition substitutes the alleged victim's status for the defendant's mens rea. "Because of..." is not the same as "acting intentionally or knowingly."

Criminal law is, and should only be concerned with, defining what is, and what is not, a crime. It is not the purview of the penal code to provide an explanation of why a crime occurred. That is the job of the criminologists, sociologists, psychologists, psychiatrists and commentators.

Crime and sympathy

I just read an interesting article by Sam Sommers, Ph.D., a social psychologist at Tufts University about how we tend to sympathize with those to whom we are similar.  In his article, Excuses, Excuses, Dr. Sommers uses the examples of the so-called "Craigslist Killer" and a church deacon who robbed a bank.

He points out that in Philip Markoff's case, his fiancee had a hard time coming to grips with his dark side.

In the case of the deacon bank robber, Bruce Windsor, he points out that media coverage focused the role the economic downturn may have played in Mr. Windsor's decision to don a mask and rob a bank four days after his 43rd birthday.

In both cases, no one could believe that either man was capable of doing what they did.

Now this is where it gets interesting: researchers Craig Haney, Laura Sweeney and Mona Lynch conducted mock-jury experiments to looking at how jurors make choices in capital murder trials. In their research they found that white jurors tend to overvalue aggravating factors and undervalue mitigating factors when the defendant is African-American. This valuation process goes a long way in explaining why blacks accused of murdering whites are much more likely to receive a death sentence that a white accused of murdering an African-American.

This same phenomenon may also explain why Barry Bonds has been vilified for (allegedly) taking steroids while rarely a word is said about Mark McGwire.

Due to the manner in which jury panels are drawn, an African-American defendant will usually find himself staring at a jury that looks nothing like him. The key is to convince those panelists that your client isn't a bad person but is, instead, a good person who made a mistake. Use voir dire to seek out bridges between your client and the jury panel that can be crossed during trial so that the jury can connect with your client.

Deterrence and DWI

Doug Berman, the author of the Sentencing Law and Policy blog, has chimed in with his opinion regarding the "leniency" courts have (supposedly) shown convicted drunk drivers. His argument is that repeat offenders should be treated more harshly in an attempt to get them to see the error of their ways.  

Mr. Berman's thesis is based upon the faulty notion that we are all rational beings and subject each and every decision to a cost-benefit analysis.  This is the basis of the concept of deterrence.

Senior Criminal District Judge Larry Gist, of Beaumont, Texas, has a slightly different view of our fellow citizens.  In an October 2007 article in Voice for the Defense (the Texas Criminal Defense Lawyer's Association magazine) he suggests we all fall into one of three categories: NORPS, SLICKS or SLUGS.

NORPS are Normal Ordinary Responsible People (presumably like us) who are generally responsible and are capable of self-correction.  Rehabilitation and deterrence work for NORPS because NORPS are rational (most of the time).  For instance, when a NORP is arrested for DWI his or her eyes are opened wide to the cost (in time, reputation and money) involved in handling a DWI arrest.  Going through the process is enough to convince them not to get behind the wheel impaired in the future.

SLICKS are the folks who think they are smarter than everyone else -- we all know someone who falls into this category.  SLICKS are (generally) incapable or rehabilitating themselves due to their anger and hatred of society.  These are the folks who deserve to be hanging out in the "Grey Bar Hilton."  SLICKS are incapable of rational thought and deterrence doesn't work for them.

SLUGS get into trouble because they commit stupid, impulsive and poorly-planned crimes. SLUGS seek out attention.  SLUGS never accept responsibility for their actions and don't really care if they are incarcerated (three full meals a day and a bed to sleep in) or rescued by a "do-gooder" who take over his problems.  SLUGS don't respond to deterrents.

Mr. Berman's idea seems to be to raise the cost of committing a DWI to such a level that the cost far outweighs the pleasure/benefit derived from driving drunk.  The problem is that most folks who pick up multiple DWI's aren't NORPS and don't think rationally when making decisions. Therefore, upping the penalties won't cause them to curb their behavior.